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CHAPTER III.

Offences against the Person, punishable by Emprisonment in a State Prison.

The offences under this head specified by the revised statutes are the following:

1. Manslaughter.

2. Rape.

3. The forcible and unlawful taking away of females, and compelling them to marry, &c.

4. Mayhem.

5. Kidnapping; and selling persons kidnapped.

6. Child stealing.

7. Abandoning children.

8. Assaults with deadly weapons.

9. Administering poison.

10. Poisoning food, springs, &c.

11. Assaults with intent to commit felonies.(a)

1. MANSLAUGHTER.

Manslaughter is distinguished from murder in this, that it arises from the sudden heat of the passions; murder, from the wickedness of the heart. Manslaughter is thus defined by the ancient writers: The unlawful killing of another without malice, either express or implied, which may be voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act. And hence it follows, that in manslaughter there can be no accessaries before the fact, because it must be done without premeditation.(b)

The revised statutes divide this crime into four degress, as follows: Manslaughter in the first degree, may be committed: 1. By the act, procurement, or culpable negligence, of a person perpetrating or attempting to perpetrate any crime or misdemeanor not amounting to a felony,

(a) 2 R. S. 260, et seq.

(b) 1 Hale, 466. 4 Black Com. 190, 191.

in cases where such killing would be murder at common law. 2. By assisting another to commit suicide. 3. By wilfully killing an unborn quick child, by any injury to the mother, which would be murder if it resulted in the death of the mother.

Manslaughter in the second degree, is: 1. The administering to any woman pregnant with a quick child, any medicine, drug, or substance, or using any instrument or other means with intent to destroy such child, unless the same was necessary to preserve the life of the mother, or was advised by two physicians as being necessary for that purpose, whereby the death of the child or mother shall be produced. 2. The killing of a human being without a design to effect death, in a heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide. 3. The unnecessary killing of another, while resisting an attempt by such other to commit any felony or to do any other unlawful act, or after such attempt shall have failed.

Manslaughter in the third degree, is: 1. The killing of another in the heat of passion, without a design to effect death, by a dangerous weapon; except in cases where the statute (c) has made such killing justifiable or excusable. 2. The involuntary killing of a human being, by the act, procurement, or culpable negligence of another, while such other person is committing or attempting to commit any trespass or other injury to private rights or property. 3. Where the owner of a mischievous animal, knowing its propensities, wilfully suffers it to go at large, or keeps it without ordinary care; and the animal, while so at large or unconfined, kills any one who has taken all the precaution that circumstances may permit, to avoid the animal. 4. Where any one navigating any boat or vessel for gain, wilfully or negligently receives so many passengers, or so much lading, as to sink or overset the vessel, and thereby any one is drowned or otherwise killed. 5. Where any one having charge of a steamboat for passengers, or having charge of its boiler or other apparatus for the generation of steam, from ignorance or gross neglect, or to excel in speed any other boat, allows to be created such an undue quantity of steam as to burst or break the boiler, or other such apparatus, or any machinery connected with it, and any one is killed by such bursting or breaking. 6. Where a physician, while intoxicated, does any act that causes the death of his patient, without intending to cause death.

Manslaughter in the fourth degree is: 1. The involuntary killing of

(c) 2 R. S. 660, §§ 2, 3, 4.

another by any weapon, or by means neither cruel or unusual, in the heat of passion in cases not declared by statute to be excusable homicide. 2. Every other killing of a human being by the act, procurement, or culpable negligence of another, when such killing is not declared to be justifiable or excusable homicide, or murder, or manslaughter in a higher degree.(d)

In our observations upon this crime it will be more convenient and tend to prevent confusion, if we follow the general classification or arrangement adopted by the revisers; and to take up each degree of manslaughter, and the several secondary divisions thereof, separately, in the order above laid down.

And 1st. Of manslaughter in the FIRST degree when committed by the act, procurement, or culpable negligence of a person perpetrating or attempting to perpetrate any crime or misdemeanor not amounting to a felony, in cases where such killing would be murder at common law.] At the common law the unintentional killing of a person by an offender who was engaged in an unlawful act, even if it was only a riot or other offence which was but a mere misdemeanor and not a felony, was held to be murder. The revised statutes, as we have seen,(e) have altered this rule, by requiring that the offence which the slayer was engaged in committing or attempting to commit should be of the degree of felony, in order to make such killing amount to murder. The principal object of these provisions of the revised statutes was to restore the common law of murder, as it anciently existed, by discriminating between a felonious killing with malice aforethought, and a felonious killing without such malice, and thus restrict certain cases to the grade of manslaughter which were previously held to be murder. All homicides, therefore, committed in perpetrating or attempting to perpetrate any crime not amounting to a felony, are now placed in the class of homicides committed without malice aforethought, or manslaughter; except where the killing is perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life; which circumstances now, as at the common law, are sufficient to authorize the jury to find the prisoner guilty of killing with malice aforethought.(ƒ)

Of manslaughter in the FIRST degree, by assisting another to commit suicide.] At common law this offence was murder. (g) The object of the legislature in altering the character of the offence, was to make the

(d) 2 R. S. 661, §§ 5 to 19.

(e) Ante, p. 28.

(f) People v. Enoch, 13 Wend. 159.

2 R. S. 657, § 5, sub. 2.

(g) Dyson's case, Russ. & Ry. Cr. Ca.

523.

punishment more appropriate to the relative guilt of the offence and the humane spirit of our criminal code, and to increase the probability of the crime being punished.

Of manslaughter in the FIRST degree by wilfully killing an unborn quick child, by an injury to the mother which would be murder if it resulted in the death of the mother.] At common law, previous to the revised statutes, the killing of an unborn quick child, by striking the mother, was only a misdemeanor. (h) The words "unborn quick child" are to be construed according to the common understanding; in which they signify a child that the mother has felt move within her. (i)

Manslaughter in the first degree is punishable by imprisonment in a state prison not less than seven years.

2d. Of manslaughter in the SECOND degree when committed 1. By administering to any woman pregnant with a quick child any medicine, drug, or substance, or using any instrument or other means with intent to destroy such child, unless the same was necessary to preserve the life of the mother, or was advised by two physicians as being necessary for that purpose, whereby the death of the child or mother shall be produced.] At common law a child not born is considered as not in being, and therefore not the subject of murder; so that the killing of such a child was neither murder nor manslaughter previous to the statute.(k) By a recent statute in England it is declared a felony.(1) It is to be observed that our statute makes the killing of the mother, as well as of the child, manslaughter, although there was no intent to kill the mother, but only "to destroy the child." This is, by the operation of the rule respecting homicides, committed in the prosecution of a felonious purpose. The attempt to procure an abortion of a child, or fœtus, not quick, is declared a misdemeanor, by a subsequent section of the revised statutes.(m)

Of manslaughter in the SECOND degree by, 2. The killing of a human being without a design to effect death, in a heat of passion, but in a cruel and unusual manner, where it is not committed under such circumstances as to constitute excusable or justifiable homicide.] With respect to homicides of this kind the revisers remark, in their notes to this section, that they present greater difficulty than any others. The weapon used or the manner of killing may indicate a barbarous and ferocious mind, but yet not that design to kill which should mark every case of murder. Courts and juries have fluctuated in classing it as mur

(h) 1 Russ. on Cr. 424. 1 Hale, 433. (i) Idem, 553.

(k) 1 Russ. on Cr. 424.

(1) 43 Geo. 3, c. 58.

(m) 2 R. S. 694, § 21.

der or manslaughter; on the one hand unwilling to suffer such an offender to escape with the slight punishment inflicted at the common law on manslaughter, and on the other, reluctant to subject him to the punishment of death. As the punishment of this grade of the offence is, by the statute, to some extent discretionary, it affords a medium between the two extremes. By confining it to cases where the killing is not declared excusable, the importaut feature of its being done without sufficient legal provocation, is preserved. Such a killing as defined in this section, but with a dangerous weapon, being a still lower grade, is declared manslaughter in the third degree; and if committed with a weapon not dangerous, it is within the fourth degree.

Of manslaughter in the SECOND degree, by-3. The unnecessary killing of another, while resisting an attempt by such other to commit any felony, or to do any other unlawful act, or after such attempt shall have failed.] The distinction between this offence and justifiable homicide is, that in the latter case it is necessary, and in the former unnecessary. As the unnecessary killing of another person, even though he is attempting to do some unlawful act, and more especially if the killing takes place after the attempt has failed, certainly involves some guilt, it is but reasonable that punishment of some kind should be provided for it. Although an involuntary act, the killing in such a case is still an offence. And at common law, if the killing was voluntary, in such cases, or done with premeditated design, it would be murder.(n)

Manslaughter in the second degree is punishable by imprisonment in a state prison not less than four nor more than seven years.(0)

3d. Of manslaughter in the THIRD degree, by-1. The killing of another in the heat of passion, without a design to effect death, by a dangerous weapon, in any case, except where the statute has made such killing justifiable or excusable.] Although the law, out of tenderness to the frailty of human nature, prescribes only a mitigated punishment, for offences committed in the heat of passion, and without previous malice, yet it will not allow the use of dangerous weapons in every case in which a man's passions become excited. The statute, by excepting cases of excusable and justifiable homicide, has retained the important feature of the killing being done without sufficient legal provocation.

Of manslaughter in the THIRD degree, by-2. The involuntary killing of a human being, by the act, procurement, or culpable negligence of another, while such other person is committing or attempting to commit any

(n) 1 East's P. C. ch. 5, § 48. 1 Russ. (0) 2 R. S. 663, § 21. on Cr. 458.

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